Archive for the ‘Asset Protection Planning’ Category

Dealing with the Credit Card Debt of Seniors

Wednesday, April 20th, 2011 by Moore McLaughlin

The number of seniors facing credit card debt has been growing. The average credit-card debt for consumers over 65 more than doubled from 1992 to 2004, to $4,907. Credit card debt can be especially problematic for seniors, who typically have a fixed income. If you or someone you love is having trouble making credit card payments, there are several options:

  • Try negotiating. A credit counseling agency or attorney may be able to negotiate with the credit card company for lower fees or interest rates. If the debtor is relying solely on Social Security for income, it may even be possible to have the debt forgiven. Note, however, that if the debt is forgiven it can count as income, which may create tax consequences or affect Social Security payments.
  • Reverse mortgage. If the debtor owns a house and is over 62 years old, a reverse mortgage may provide enough money to pay off debt. With a reverse mortgage, instead of paying the bank money to build up equity, homeowners use the equity in their homes to take out loans. The loan does not have to be paid back until the house is sold or the homeowner dies. While reverse mortgages may look like no-lose propositions on the surface, they also have some significant downsides.
  • Tap into life insurance. Permanent life insurance policies build a cash value, which can be used as collateral for a loan or withdrawn from the account. This money can be used for any purpose, including paying down credit card debt. Keep in mind, however, that loans or withdrawals will reduce the death benefit.
  • Bankruptcy. Filing for bankruptcy is not an easy solution. In 2005, a tough bankruptcy law went in to effect, making it much more difficult to get bankruptcy protection. For example, bankruptcy is available only to individuals whose income is below a certain level, and the homestead exemption, which allows you to protect all or some of the equity in your home, is stricter. Before filing for bankruptcy be sure to discuss your options with an attorney.
  • Do nothing. It may sound crazy, but one option is to do nothing and let the credit card companies sue the debtor. If the debtor owns a house, the court may put a lien on it. If not, the debt may be written off or reduced. An attorney can tell you if this is the right step for you take.

Regardless of what steps the debtor takes, debtors have the right not to be harassed by credit card companies. The Fair Debt Collection Act prohibits certain conduct by credit agencies attempting to collect debts. For example, creditors may contact debtors only between the hours of 8am and 9pm, may not use abusive or profane language, and must stop contacting debtors if the debtors request it in writing.

Congress passes bill repealing expanded 1099 information reporting requirements

Wednesday, April 6th, 2011 by Moore McLaughlin

On April 5, the Senate by a vote of 87-12 approved H.R. 4, the “Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011.” The measure, which retroactively repeals expanded Form 1099 information reporting rules added by recent legislation, was passed by the House on March 3 by a vote of 314-112. Thus, H.R. 4 (the Act) is cleared for the President’s expected signature.

Here are highlights of the tax changes in the Act.

Original information reporting rules. Before amendment by the Small Business Jobs Act of 2010 (P.L. 111-240) and the Patient Protection and Affordable Care Act (PPACA, P.L. 111-148), Code Sec. 6041 generally required payments totaling at least $600 in a single calendar year to a single recipient to be reported to IRS. Reporting on Form 1099 was required only when the payor was considered to be engaged in a trade or business and has made the payment in connection with that trade or business. The type of payment that most commonly triggered the reporting requirement was payment for services.

There were a number of exemptions from Code Sec. 6041 ‘s reporting requirements under prior law, notably including payments to corporations (which were exempt under Reg. § 1.6041-3(p)(1)).

Pre-Act law—changes made by 2010 legislation. Beginning in 2012, Sec. 9006 of PPACA added payments of amounts in consideration for any type of property and gross proceeds—i.e., it added payments for goods or other property—to the list of payments subject to information reporting.

Sec. 9006 of PPACA further provided that, beginning in 2012, payments to non-tax-exempt corporations—which had previously been exempt from the reporting requirement—would be subject to information reporting.

Additionally, for payments made after 2010, the Small Business Jobs Act of 2010 provided that, subject to limited exceptions, a person receiving rental income from real estate would be treated as engaged in the trade or business of renting property for information reporting purposes. In particular, rental income recipients making payments of $600 or more to a service provider (for example, a painter or plumber) in the course of earning rental income would have to provide an information return to the service provider and IRS.

New law. For payments made after December 31, 2011, the Act repeals the provisions in Sec. 9006 that impose a reporting requirement for payments to corporations and payments for goods or other property. (Code Sec. 6041(a), Code Sec. 6041(i), and Code Sec. 6041(j), as amended by Act Sec. 2) And for payments made after December 31, 2010, the Act also repeals application of the information reporting requirements to recipients of rental income from real estate who are not otherwise considered to be engaged in the trade or business of renting property. (Code Sec. 6041(h), as repealed by Act Sec. 3)

In other words, under the Act, the information reporting rules effectively revert to the way they read before enactment of PPACA and the Small Business Jobs Act of 2010.

Revenue offset. The Act provides an offset for the lost revenue from repealing the new information reporting provisions, estimated at $21.9 billion. It increases the amount of “excess advance payments” of the premium assistance credit (enacted as part of the 2010 health care reform legislation to help lower-income individuals acquire affordable health insurance coverage) that a taxpayer must repay under Code Sec. 36B(f)(2) for tax years ending after December 31, 2013. The credit is available for a taxpayer who does not receive health insurance through his employer (or his spouse’s employer) and whose income falls between 100% and 400% of the federal poverty line (FPL), based on the most recently filed tax return.

Under pre-Act law, if the taxpayer’s income increases such that the credit exceeds that to which his current income level actually entitles him to, but his income is still under 500% of FPL, he had to repay some credit amounts. The limit on amounts he had to repay were capped and ranged from $600 to $3,500.

New law. Under the Act, for tax years ending after December 31, 2013, the repayment caps are increased for taxpayers with household income of at least 200% but less than 400% of FPL, and full repayment is required for taxpayers whose incomes exceed 400% of FPL. (Code Sec. 36B(f)(2)(B)(i), as amended by Act Sec. 4)

Responsibility for a Deceased Relative’s Debts

Friday, April 1st, 2011 by Moore McLaughlin

The loss of a loved one is tough to begin with, but if the loved one left debts behind, it can be even tougher. Family members generally should not have to pay for a decedent’s debts, but it is important to know your rights because collection agencies may target the decedent’s relatives.

Usually the loved one’s estate is responsible for paying any debts. If the estate does not have enough money, the debts will go unpaid. The debt collectors may not collect payment from relatives (unless they were co-signers or guarantors). However, if you are the spouse of the decedent, you may have responsibility for any debts that were jointly held. Depending on state law, some assets — such as a house or car — may be exempt from debt collection. You should talk to an attorney to determine your responsibility, if any.

If a debt collector contacts you, give the collector the contact information for the personal representative (also called the “executor”) who is handling the estate. It is the personal representative’s responsibility to make sure all bills are paid. Whatever you do, do not give any personal information to debt collectors. Scam artists sometimes pose as debt collectors to prey on relatives.

If a debt collector won’t stop contacting you, send a certified letter to the collector saying you do not want to be contacted again. Once the collector receives the letter, the collector can contact you only to tell you that there will be no further contact or to inform you of a lawsuit. Report any problems with debt collectors to your state’s attorney general or to the Federal Trade Commission.

Statutory glitch reduces portable estate tax exclusion for some surviving spouses

Thursday, March 31st, 2011 by Moore McLaughlin

Effective for estates of decedents dying after 2010 and before 2013, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (2010 Tax Relief Act) allows a deceased spouse’s unused estate tax exclusion to be shifted to the surviving spouse. The Joint Committee on Taxation (JCT) has released an errata sheet pointing out an error in the statutory language defining “deceased spousal unused exclusion amount.” As explained below, the current statutory language may result in a lower-than-intended exclusion for the surviving spouse of an individual who was previously married and received a portable estate tax exclusion from his or her former spouse. The JCT says a technical correction may be needed to fix the defect.

Background. A credit (the “unified credit”) is allowed against the estate tax imposed on U.S. citizens and residents. The credit is equal to the tentative tax on the “applicable exclusion amount,” determined under the estate tax rate schedule.

Pre-2010 Tax Relief Act law did not allow for any unused portion of a decedent’s applicable exclusion amount to be used by the estate of the decedent’s surviving spouse.

Portable exclusion. Under the 2010 Tax Relief Act, for estates of decedents dying after 2010 and before 2013, the applicable exclusion amount is the sum of (1) the “basic exclusion amount” and (2) in the case of a surviving spouse, the “deceased spousal unused exclusion amount.”

The basic exclusion amount is $5 million with an adjustment for inflation after 2011.

The “deceased spousal unused exclusion amount” is the lesser of:

(1) the basic exclusion amount, or

(2) the excess of the basic exclusion amount of the last deceased spouse dying after December 31, 2010, of the surviving spouse, over the amount on which the tentative tax on the estate of the deceased spouse is determined.

A deceased spousal unused exclusion amount may not be taken into account by a surviving spouse unless the executor of the estate of the deceased spouse files an estate tax return on which the amount is computed, and makes an election on the return that the amount may be taken into account by the surviving spouse. The election, once made, is irrevocable. No election may be made if the estate tax return of the deceased spouse is filed after the due date (including extensions) for filing the return.

A surviving spouse may use the deceased spousal unused exclusion amount in addition to his or her own $5 million exclusion for taxable transfers made during life or at death.

Illustration 1: Husband 1 dies in 2011, having made taxable transfers of $3 million and having no taxable estate. An election is made on his estate tax return to permit Wife to use his deceased spousal unused exclusion amount. As of his death, Wife has made no taxable gifts. Thereafter, Wife’s applicable exclusion amount is $7 million (her $5 million basic exclusion amount plus $2 million deceased spousal unused exclusion amount from Husband 1), which she may use for lifetime gifts or for transfers at death. (Committee Report)

If a surviving spouse is predeceased by more than one spouse, the amount of unused exclusion that is available for use by the surviving spouse is limited to the lesser of $5 million or the unused exclusion of the last deceased spouse.  This so-called “last deceased spouse” limitation applies whether or not the last deceased spouse has any unused exclusion, and whether or the estate of the last deceased spouse makes a timely election to allow the surviving spouse to use the deceased spousal unused exclusion amount.

Illustration 2: Assume the same facts as in illustration (1), except that Wife subsequently marries Husband 2. He predeceases Wife, having made $4 million in taxable transfers and having no taxable estate. An election is made on his estate tax return to permit Wife to use his deceased spousal unused exclusion amount. Although the combined amount of unused exclusion of Husband 1 and Husband 2 is $3 million ($2 million for Husband 1 and $1 million for Husband 2), only Husband 2′s $1 million unused exclusion is available for use by Wife because the deceased spousal unused exclusion amount is limited to the lesser of the basic exclusion amount ($5 million) or the unused exclusion of the last deceased spouse of the surviving spouse. Thereafter, Wife’s applicable exclusion amount is $6 million (her $5 million basic exclusion amount plus $1 million deceased spousal unused exclusion amount from Husband 2), which she may use for lifetime gifts or for transfers at death. (Committee Report)

Remarried surviving spouses who predecease new spouse. The following illustration, based on an example in the Committee Report, says that if a surviving spouse remarries, and then dies survived by a new spouse, the deceased spousal unused exclusion amount included for the surviving spouse’s estate is determined by taking into account the deceased spouse’s applicable exclusion amount and not just the basic exclusion amount.

Illustration 3: Assume the same facts as in Illustrations 1 and 2, except that Wife predeceases Husband 2. Following Husband 1′s death, Wife’s applicable exclusion amount is $7 million (her $5 million basic exclusion amount plus $2 million deceased spousal unused exclusion amount from Husband 1). Wife made no taxable transfers and has a taxable estate of $3 million. An election is made on Wife’s estate tax return to permit Husband 2 to use Wife’s deceased spousal unused exclusion amount, which is $4 million (Wife’s $7 million applicable exclusion amount less her $3 million taxable estate). Under the provision, Husband 2′s applicable exclusion amount is increased by $4 million, i.e., the amount of Wife’s deceased spousal unused exclusion amount. (Committee Report)

This view does not seem to reflect Code Sec. 2010(c)(4), which states that the deceased spousal unused exclusion amount equals the lesser of the basic exclusion amount (i.e., $5 million), or the excess of the basic exclusion amount of the last deceased spouse of such surviving spouse over the amount on which the tentative estate tax is determined under Code Sec. 2001(b)(1) on the estate of such deceased spouse. Rather, under the current statutory language, Husband 2′s applicable exclusion amount would seem to be increased by only $2 million.

The JCT Errata sheet confirms that the current statutory language does not support the conclusion in Illustration 3. It does so by adding a footnote to the example in the Committee Report on the 2010 Tax Relief Act. The footnote states that a technical correction may be necessary to replace the reference to the basic exclusion amount of the last deceased spouse of the surviving spouse with a reference to the applicable exclusion amount of such last deceased spouse, so that the statute reflects Congressional intent.

Under the technical correction, Husband 2′s applicable exclusion amount would be increased by $4 million.

Under the technical correction, it would be possible for the new spouse’s applicable exclusion amount to exceed $10 million, the combined amount of the basic exclusion amount of the surviving spouse and the new spouse. For example, if, in Illustration 3, the Wife’s taxable estate were only $1 million, then Husband 2′s applicable exclusion amount would be increased by $6 million (Wife’s applicable exclusion amount of $7 million less $1 million of taxable transfers). Thus, Husband 2′s applicable exclusion amount would be $11 million (Wife’s spousal unused exclusion amount of $6 million, plus Husband 2′s basic exclusion amount of $5 million).

Allowing a surviving spouse to wind up with a more than $10 million applicable exclusion amount is somewhat inconsistent with the last spouse limitation. That’s because the last spouse limitation prevents a spouse who survived two or more deceased spouses from getting an applicable exclusion amount that exceeds the combined basic exclusion amounts of a husband and wife. This combined figure presently is $10 million, but could exceed $10 million with inflation adjustments after 2011.

There is no word on when this or any other technical corrections may be forthcoming. Hopefully, IRS will address the matter when it provides guidance on the new portable exclusion.

Ways and Means OKs two competing bills to repeal new 1099 requirements

Monday, February 21st, 2011 by Moore McLaughlin

On February 17, the House Ways and Means Committee by a vote of 21-15 approved. H.R. 705, the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayment Act of 2011. Upon passage of H.R. 705, the text of a competing bill (H.R. 4, the Small Business Paperwork Mandate Elimination Act of 2011), which was approved by voice vote earlier in the day, was incorporated into H.R. 705. There were no other amendments adopted to H.R.705.

Both bills seek to modify or repeal the new requirements imposed by Sec. 9006 of the Patient Protection and Affordable Care Act (PPACA), which provides that payments for goods and payments made to corporations (that are not tax-exempt) will be subject to information reporting beginning in 2012. H.R. 705 also seeks to repeal Code Sec. 6041(h), which was added by the Small Business Jobs Act of 2010 and which treats recipients of rental income from real estate as engaged in the trade or business of renting property for information reporting purposes beginning in 2011. However, H.R. 705 provides an offset for the estimated $21.9 billion cost of repeal, whereas H.R. 4 does not.

Also on February 17, the Senate by a vote of 92-2 invoked cloture (i.e. voted to cut off debate) on S. 223, the FAA Air Transportation Modernization and Safety Improvement Act, which includes a provision to repeal the Sec. 9006 reporting requirements.  Unless time is yielded back, there remains 30 hours of debate on the bill before a vote on final passage of the measure.

IRS Set To Launch New Offshore Voluntary Disclosure Program

Thursday, February 3rd, 2011 by Moore McLaughlin

The IRS is putting the finishing touches on a new offshore voluntary disclosure program, according to several agency officials quoted in news reports. The new program will have some similarity to the previous voluntary disclosure program that ended in October 2010, but is expected to offer different terms regarding possible penalties. Many observers foresee the new initiative offering terms less generous than those in the previous program. At an American Bar Association gathering on Janury 21, Steven Miller, IRS deputy commissioner for services and enforcement, put the tax professional community on notice that another initiative was in the works. Other agency officials have since indicated that the details of the program would soon be forthcoming.

Stay tuned to our Blog, or contact Partner Moore McLaughlin, Esq. for more information at mmclaughlin@mclaughlinquinn.com or by phone at 401-421-5115 ext 212.

A Trip to the Hospital May Put Assisted Living Residents on Medicaid at Risk of Eviction

Wednesday, February 2nd, 2011 by Moore McLaughlin

Elderlaw Attorney Jill E. Sugarman tells us that assisted living facility residents covered by Medicaid are at risk of being evicted if they leave the facility, even for a temporary hospitalization.  The National Senior Citizen’s Law Center (NSCLC) warns of this problems in a recently released White Paper. Ironically, Medicaid officials in most states have the power to prevent these evictions but in most cases are not exercising it.

Most state Medicaid programs pay for services not just in nursing homes but in assisted living facilities, which are meant to provide a home-like alternative to nursing homes. But there is a crucial difference between nursing homes and assisted living facilities. The Nursing Home Reform Law authorizes Medicaid to pay a nursing home to hold a room for a Medicaid recipient who is temporarily absent due to hospitalization and entitles the resident to return to the first-available room.

In contrast, Medicaid does not make similar payments on behalf of residents of assisted living facilities and the facilities are not required to give admission priority to returning residents. This difference in treatment, the NSCLC asserts in its report, “Medicaid Payment for Assisted Living: Residents Have a Right to Return After Hospitalization,” diminishes the value of assisted living facilities as a community-based alternative to nursing home care. If assisted living facilities truly seek to offer “home or community-based” services, says the advocacy group, residents should have the peace of mind of knowing that they won’t be evicted if they are absent for a few days or weeks.

The NSCLC points out that in most cases states could remedy the situation. Most states pay for assisted living care though a Medicaid waiver program. In 2000, the federal Centers for Medicare and Medicaid Services (CMS) advised states that it would authorize the issuance of “retainer payments” to Medicaid waiver home and community based service providers during a Medicaid recipient’s temporary absence, such as for hospitalization. The guidance described the retainer payments as being comparable to room-hold payments for nursing home residents. However, it appears that most of the states either do not understand the federal guidance or have not implemented it. Exceptions include Georgia, Illinois, Montana and Washington, all of which make retainer payments to assisted living facilities on behalf of residents who are temporarily absent.

The NSCLC makes a number of recommendations:

  • CMS should clarify that Medicaid-funded retainer payments are available for temporary absences from an assisted living facility;
  • State governments should authorize retainer payments up to the federally allowed maximum;
  • Federal Medicaid law should be changed to entitle residents of assisted living facilities to room holds, room-hold payments and readmission to the next available room after temporary absences;
  • Room holds should apply regardless of the reason for an absence.

To view NSCLC’s White Paper and other materials on the issue, including a News Release and a Policy Brief, click here.

For more information regarding Medicaid planning, contact Jill E. Sugarman, Esq. at jsugarman@mclaughlinquinn.com or by phone at 401-421-5115 ext. 215.

Overview of Two-Year EGTRRA/JGTRRA/ARRA Sunset Relief

Sunday, December 19th, 2010 by Moore McLaughlin

Under pre-Act law, the provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001, other than those made permanent or extended by subsequent legislation, were set to sunset and no longer apply to tax or limitation years beginning after 2010.  Beginning in 2011, the EGTRRA sunset would have wiped out a host of favorable tax rules, such as: favorable income tax rate structure for individuals; marriage penalty relief; and liberal education-related deduction rules. Similarly, under Sec. 303 of the Jobs and Growth Tax Relief Reconciliation Act of 2003, the favorable tax treatment of long-term capital gain and qualified dividends would have ended after 2010.

The alternative minimum tax (AMT) exemption amounts were “temporarily” increased for four years by EGTRRA, and then “temporarily” increased again by a succession of tax laws. The ability of individuals to use most nonrefundable personal credits to offset AMT also is “temporary,” and has been extended over the years by a series of new laws. Under pre-Act law, after 2010, the AMT exemption amounts were to have plummeted to their pre-EGTRRA level, and individuals would not have been able to use most nonrefundable personal credits to offset AMT.

Finally, the American Recovery and Reinvestment Act of 2009 temporarily boosted the credit incentives for higher education (i.e., created the American Opportunity Tax Credit, or AOTC), and liberalized the rules for the refundable child tax credit and the earned income tax credit (EITC). Under pre-Act law, these ARRA incentives would have ended on December 31, 2010.

New law. Under 2010 Tax Relief Act Secs. 101 through 103, the Sec. 901 EGTRRA sunset, the Sec. 303 JGTRRA sunset, and the ARRA sunsets relating to the AOTC, child tax credit, and EITC are extended for two years (one year in case of the adoption rules).

Caution:  Unless Congress acts, all of the favorable rules will revert after 2012 to their pre-EGTRRA, pre-EGTRRA, and pre-ARRA rules. For example, the tax rates for individuals in 2013 will be 15%, 28%, 31%, 36%, and 39.6%.

Stay tuned for more posts about this new tax law.

2011 Tax Law Signed

Sunday, December 19th, 2010 by Moore McLaughlin

At about 3:50 p.m. on Friday, December 17, 2010, President Obama signed into law the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.” This new law is a sweeping tax package that includes, among many other items, an extension of the Bush-era tax cuts for two years, estate tax relief, a two-year “patch” of the alternative minimum tax (AMT), a two-percentage-point cut in employee-paid payroll taxes and in self-employment tax for 2011, new incentives to invest in machinery and equipment, and a host of retroactively resuscitated and extended tax breaks for individuals and businesses. Here’s a look at the key elements of the package:

  • The current income tax rates will be retained for two years (2011 and 2012), with a top rate of 35% on ordinary income and 15% on qualified dividends and long-term capital gains.
  • Employees and self-employed workers will receive a reduction of two percentage points in Social Security payroll tax in 2011, bringing the rate down from 6.2% to 4.2% for employees, and from 12.4% to 10.4% for the self-employed.
  • A two-year AMT “patch” for 2010 and 2011 will keep the AMT exemption near current levels and allow personal credits to offset AMT. Without the patch, an estimated 21 million additional taxpayers would have owed AMT for 2010.
  • Key tax credits for working families that were enacted or expanded in the American Recovery and Reinvestment Act of 2009 will be retained. Specifically, the new law extends the $1,000 child tax credit and maintains its expanded refundability for two years, extends rules expanding the earned income credit for larger families and married couples, and extends the higher education tax credit (the American Opportunity tax credit) and its partial refundability for two years.
  • Businesses can write off 100% of their equipment and machinery purchases, effective for property placed in service after September 8, 2010 and through December 31, 2011. For property placed in service in 2012, the new law provides for 50% additional first-year depreciation.
  • Many of the “traditional” tax extenders are extended for two years, retroactively to 2010 and through the end of 2011. Among many others, the extended provisions include the election to take an itemized deduction for state and local general sales taxes in lieu of the itemized deduction for state and local income taxes; the $250 above-the-line deduction for certain expenses of elementary and secondary school teachers; and the research credit.
  • After a one-year hiatus, the estate tax will be reinstated for 2011 and 2012, with a top rate of 35%. The exemption amount will be $5 million per individual in 2011 and will be indexed to inflation in following years. Estates of people who died in 2010 can choose to follow either 2010′s or 2011′s rules.
  • Omitted from the new law: Repeal of a controversial expansion of Form 1099 reporting requirements.
  • Also not included: Extension of the Build America Bonds program, which permits state and localities to issue federally-subsidized municipal bonds.

Watch for upcoming posts containing more detail on this new law.  In the meantime, feel free to contact us with any questions you may have.